Contents

1. ‘All decrees are subject to appeal, but all orders are not appealable’. In light of the statement
explain the procedures for the appeal against orders.......................................................................2
2. Write a short note on the following (Any two): a) Receiver b) Government Officer c)
Interpleader suit. d) Security from the plaintiff..............................................................................3
3. Write a note on power of the courts to issue commissions explaining the purpose of such
issuance..........................................................................................................................................13
4. Write a detailed note on the suits by or against the partnership firm as provided under CPC.
16
5. Write a short note on the following (Any two): a) Condonation of Delay b) Guardian c)
Executor and Administrator under the CPC d) Execution of Decree...........................................21
6. What provisions have been made in The Code of Civil Procedure, 1908 regarding the
withdrawal of suit and compromise outside the courts?................................................................31
7. Evaluate the situation stated below giving very briefly issue, decision and reasoning based
on the provisions of CPC: ‘Sachin gave 10000 INR to Sourabh (a public officer) as debt. It was
decided that the said amount will be returned within one-year time. After the lapse of one year
when Sachin approached Sourabh for money, Sourabh refused to pay the debt. Sachin then
approached the court by filing a plaint. Sourabh made an objection that proper procedure as
provided under Sec 79-82 and Order XXVII was not followed.’.................................................34
8. Evaluate the situation stated below giving very briefly issue, decision and reasoning based
on the provisions of CPC: ‘Ragnarok’, a trustee of Asgard (Trust Property), learnt that there is
some encroachment upon Asgard by the neighbor ‘Hella’, thereby the rights of the Asgardians
(beneficiaries) are violated. Suggest the legal course of action by Ragnarok as per the provisions
contained under the CPC.’.............................................................................................................38
9. Short note on Bar of Jurisdiction............................................................................................40
1. ‘All decrees are subject to appeal, but all orders are not appealable’. In light of the
statement explain the procedures for the appeal against orders.
Answer

Appeals From Orders

SECTIONS 104 to 108 and Order 43 provides for appeals against orders. They state that
certain orders are appealable and other orders are not appealable. But it is possible to attack such
orders in an appeal against the final decree. These sections also provide the forum for an appeal.
Order can be defined as "the formal expression of any decision of a civil court which is not a
decree" Therefore, an adjudication by a court that does not come under a "decree" is an "order".
An appeal of an order can be filed within ninety days before the High Court and within thirty
days from the date of the order, before another court. SECTION 106 states that appeals against
orders in cases in which they are appealable shall be brought before the court to where an appeal
would lie from the original suit.

Some of the instances of appealable orders are-

 An order awarding compensatory costs in respect of false or vexatious claims or defence.

 An order refusing leave to institute a suit against public nuisance.
 (iii)An order rejecting an application to set aside the dismissal of a suit for default.
 An order rejecting an application to set aside an ex parte decree.
 An order dismissing a suit or striking out defense for non- compliance with an order for
discovery.
 An order granting or refusing to grant interim injunction.
 An order refusing to restore an appeal dismissed for default of appearance by appellant.
 An order refusing to rehear an appeal heard ex parte.
 An order of remand.
 An order granting an application for review

OTHER ORDERS

Section 105 enacts that every order whether appealable or not, except an order of remand, can be
attacked in an appeal from the final decree on the ground that there is an error, defect or
irregularity in the order and that such error, defect or irregularity affects the decision of the case.
The principle underlying Section 105 is that when an interlocutory order is appealable, the party
against whom such order is made is not bound to prefer an appeal against it. There is no such law
which compels a party to appeal from every interlocutory order by which he may feel affected.
Section 105 makes it clear that an order appealable under Section 104 may be questioned under
this section in an appeal from the decree in the suit, even though no appeal has been preferred
against the interlocutory order.

2. Write a short note on the following (Any two):

a) Receiver
b) Government Officer
c) Interpleader suit.
d) Security from the plaintiff
Answer

Receiver

INTRODUCTION

A receiver plays an important role in helping the court in civil cases. The Receiver is known to
be a court officer who supports the court before the court determines the case, to protect and
maintain the subject matter of the suit. The court sometimes assumes that it is in the best interest
of all parties to nominate a recipient to be responsible for the management of the subject.
Movable or immovable property is usually the subject matter.

Just as a wise man takes care of his own personal property, the receiver is responsible for taking
care of another’s property. He should obey the court’s instructions and failure to do so will make
the court attach his property to recover the sum that is due to him.

WHO IS A RECEIVER?

The Receiver is an independent and impartial person under order 40 of the Civil Procedure Code,
1908 who is appointed by the court to administer, that is, to safeguard and maintain the disputed
property involved in a lawsuit. He is not a representative of either of the parties to the action and
is uniformly regarded as a court officer working in the interests of neither the plaintiff nor the
defendant, but for the common purpose of the court and benefit of all parties involved.

OBJECTIVE OF APPOINTMENT OF RECEIVER

When a party in possession of the disputed property exhausts the property or causes irreparable
damage to it, because the subject matter ceases to exist or its value is impacted, the entire object
of the suit is defeated. Therefore, if the court considers that the disputed property must not be
delegated to either party, pendente lite, the court shall designate a recipient to whom the security
and maintenance of that property is entrusted. It is a form of temporary security given by the
court to the parties making the request before the court adjudicates the matter.

ROLE OF A RECEIVER

The Receiver is regarded as a court officer and is the court’s extension. He is responsible for
receiving disputed property or money provided by the court and managing such property or
money until a decree is passed or the parties have compromised, or any other period considered
appropriate by the court. Custodia legis, i.e. in the custody of the law, is considered to be the
property or fund entrusted to the receiver. The Receiver has no authority other than what is
entrusted to him during his appointment by the court.

APPOINTMENT OF RECEIVER

According to the Code of Civil Procedure, if it appears fair and convenient for the court to
appoint such a recipient [section 51(d)], the court before whom the proceedings are pending may
appoint the recipient. It is within the court’s discretionary authority to appoint the receiver. In a
suit, for instance, a receiver can be appointed by the trial court. Whereas the appeal court can
appoint a receiver. However, there is no absolute, arbitrary, or unregulated discretion. The phrase
“just and convenient” does not mean that the appointment is based on the judge’s whims and
fancies on any ground that stands against equity.

WHO CAN APPLY FOR RECEIVER?

the request for the appointment of a receiver is made by a claimant, but defendants may also file
such an application. A third party is not authorized to file an application, but if he is involved in
protecting and maintaining the land, he can also file an application after having secured the
court’s permission.

PROCESS OF APPOINTMENT

One of the most challenging remedies is the appointment of a receiver since it deprives the
defendant of his right of ownership before the final decree. The court should not, therefore,
appeal to it solely on the ground that it would do no harm. There should be strong concern that if
the appointment of a recipient is postponed, there is a risk to the property, or the complainant
will be in a worse position.

And where there is a risk of mistake or injury should the court assign a recipient. It is also shown
that the subject-matter is not in the hands of either party and that it is in the best interest of all
parties to appoint a receiver to secure and retain the properties.

The court should look at the actions of the party making the motion for a receiver’s appointment.
The group should come to the court with clean hands and their actions should be such that this
equal relief is not disenfranchised.

POWERS AND DUTIES OF A RECEIVER:

Powers:

Under Order forty rule 1(d) powers of the receiver are provided as following:

 Collection of rents and profits arising out of the property.

 Application and disposal of such rents and profits.
 Execution of documents because the owner himself.
 To institute and defend the suit.
 Such powers because the court could reckon match.

Duties:

Under order forty rule (3), duties of a receiver area unit provided as follows:

 Furnish security to account for what he can receive from the property as financial gain.
  Submit accounts (half yearly) for such amount or kind as directed by the court. The
account essentially includes the financial gain received and expenses incurred for the
protection and preservation of the property.
 Pay the quantity thanks to the court.
 Take responsibility for any reduction within the price of the property attributable to the
receiver’s willful negligence.
 Discharge the duties in person and may not delegate or assign any of the rights entrusted
to him by the court.

The receiver needs to fulfill all the duties and responsibilities entrusted to him by the court.
Otherwise, the court will act against him and create him in person answerable for any loss which
could occur thanks to his negligence or willful failure to shield and preserve the property.

Conclusion

Thus, the receiver plays a crucial role whenever the court needs the receiver to manage the topic
matter during a suit to safeguard and preserve it until the time, the court decrees the suit. The
receiver is an official of the courts and therefore the material managed by him is in custody of
the law. The court appoints a receiver once the court is of the opinion that neither of the party
ought to manage the property until the time the matter is set. somebody will become a receiver
provided they fulfil the wants set by the court. Courts have unconditional bound powers and
responsibilities on the receiver that he ought to use to manage the property within the best
manner potential. The receiver ought to watch out whereas creating a crucial call associated with
the topic matter as he is in person chargeable for any harm thereto. He will ask for the
permission of the court before creating such selections to be safe.

Government Officer/ Suits by or against the government

Suits by or against the government or public officials in their official capacity is a type of special
cases in the code of civil procedure. Such suits are of a special type because the procedures
which are needed to be followed in the institution of the plaint are different from the procedures
which are to be followed in the civil suits which consists of private parties. For filing a suit
against the government or public official, the plaintiff needs to first serve a legal notice to the
public officer or to the Secretary to the Government.
After the service, the plaintiff needs to wait or two months to file the plaint in the Court. A lot of
formalities and procedures are needed to be taken care of to file the suit. However in certain
situations, the Court may grant an exception, but it depends upon the facts and circumstances of
the case.

Analysis of the Provisions of Law

Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908, deal with the procedure
which needs to be followed in the process of filing of a suit against the government or public
officials. Code of civil procedures prescribes only the procedures. The rights and liabilities of the
parties are dealt by the Constitution of India, 1950.

The first step in the process of filing of suit in this case is service of notice to the
defendant. Section 80 of the Code of Civil Procedure, 1908 states that only after the expiry of
two months from the date of service of notice to the government officials, a plaint can be filed in
the Court of law.
In the case where the defendant is the Central Government the notice should be served to the
Secretary to the Government, in case the defendant is the Railways the General Manager, in case
of State Government the Secretary to that Government or to the Collector of the District, in case
of public officer the notice should be served to him and in case the defendant is the State of
Jammu and Kashmir the notice should be served to the Chief Secretary of the Government or any
other officer authorized by the government.

The main intention of the Legislative in the insertion of this section and adding this process in
the filing of suit is to make sure that the Government or the Public Officer knows the reasons,
demands or the concern of the Plaintiff for which the suit shall be instituted. By knowing the
distress of the Plaintiff, the Public official can act upon it and rectify the situation. The time
period of two months is also provided for the same reason. The main objective of government is
to serve the public and protect their rights. By providing the notice along with the necessary time
they can give more importance to the problem and settle the dispute by not approaching the
Court. This shall not only save the time of the Court, but also of the government and the
unnecessary legal expenses.

In the case of State of Madras v. C.P. Agency the Court had also given this reasoning as well as
the Supreme Court supported this by giving its own analysis in the case of Bihari Chowdhary v.
State of Bihar. This provision helps the Government, the Court of law as well as the public
however misuse of this provision can also occur which would demolish the main objective of
law i.e. to impart justice. In the Fourteenth Law Commission Report, the commission witnessed
how the Government and the Public Officials misused this provision and quashed the claims of
the citizens by delaying the process and taking the technical defense. It was also seen that in
other nations governed by the system of Anglo Saxon, no country has this kind of provision. In a
democratic form of government this kind of statutes does not need to be in use. It is the right of
the citizens to raise questions against the government for their in – efficiency and mal – feasance
and if needed they have the right to sue the government.

The government is for the people, by the people and of the people. Hence it is essential that they
should be accountable and they should serve to their best. However no amendment had come to
amend this section and hence it is still in use. Section 80 of the Code of Civil Procedure,
1908 also states the contents of the notice which should be served to the government of the
public official. The most essential contents of the notice should have the name, description, place
of residence of the plaintiff and the cause of action and the relief sought. The service of the
notice should be delivered to the office of the concerned person or served directly to him.

After the expiry of two months if the aggrieved party wishes to file the suit in the Court of law,
he or she would need to produce a written statement which should state the way in which the
notice was served. The service of the notice has a strict application and is mandatory process. It
should be done expressly and not impliedly. The Supreme Court had held so in the case of State
of A.P. v. Gundugola Venkata and also expressed that if proper service of the notice does not
happen then the suit would entail a dismissal. However this statute should be reasonably
construed and should be interpreted by looking at the objective of it. Mere error not affecting the
objective of it should not result in dismissal of the plaint The notice should comply with the
minimum requirements according to the statute. If the case is against a public officer and the
relief is prayed for an act which the officer will have to do in near future, proper service of notice
becomes mandatory. The sentence act to be done by the Public Officer includes those acts which
can be done in his Official capacity. It does not include acts which are beyond his or her official
capacity
The service of notice is of a procedural form and it is not a substantive statute. The object of the
service of notice is to make sure that the government is aware of the problems of the Plaintiff and
the course of action which he intends for. The service of notice is for the benefit of the
government and it is upon the government to take support of it. If the government does not
require the service and expresses it, the Court may allow the plaint without the service of notice.
However this totally depends upon the facts and circumstances of the case
Section 80(2) of the Code of Civil Procedure, 1970 allows private individuals to file a suit
against the government without serving the notice to the public officer if the matter is of an
urgent nature. This section acts as an exception for sub-section 1 of Section 80 of the Act. The
main objective of inserting this exception is to make sure that miscarriage of justice does not
happen in urgent cases by delay in the proceedings. The urgency of the matter is judged by the
Court by considering the facts and circumstances. The Court should hear both the private
individual and the government in judging whether the matter is of an urgent nature.
Writ Petitions against the Government is exempted from the service of notice under Section 80
of CPC as writ petitions do not fall under the category of suits. Writ Petitions are filed under
Article 32 and 226 to the Supreme Court and High Court respectively.
After filing of suit against the government, the plaint and the written statement should be signed
by a person appointed by the government. The person should be authorized and be a recognized
agent according to the Code. The agent shall have the power to receive summons and the
government does not need to attach the Vakalatnama.
A proper and reasonable time is given to the Government to file the Written Statement and in
every suit against the government the court needs to assist the government in coming to a
settlement with the private individual. The procedure under Order 27 of the Code of Civil
Procedure, 1908 applies to only government and not to other agents or instruments which falls
under the category of State according to Article 12 of the Constitution of India, 1950. If the suit
proved a substantial question of law related to the interpretation of the Constitution, the Court
needs to issue a notice to the Attorney General of India if the question related to the Central
Government and to the Attorney General of the concerned State if it relates to a State
Government.
Section 81 of the Code of Civil Procedure, 1908exempts the public officer to appear in person in
the Court against whom the case has been filed. This exception is acceptable only if the Court is
satisfied if the Court is convinced to the need of the Officer to be present in his duty related to
Public Service. The code also grants protection from arrest and from attachment of his property
in execution of the decree.

Conclusion
Suits by or against government or public officers constitutes a lot of formalities and also
provides a lot of protection and defenses to the Government. These protections allow the
government to take actions in providing remedies to the private individual and save the Court’s
time.

However at the same time these protections become a great problem and hurdle in the process of
imparting justice. Hence, in my point of view, instead of bringing in amendments to the Statute
for example, totally exempting the process of servicing notice to the government, the Court
should judge the facts and circumstances of the case and come to the conclusion to whether the
service of notice is a necessity in the case.

Interpleader suit.

Introduction

An interpleader suit is one in which the real controversy/dispute is not between the plaintiff and
the defendant, but is rather between the defendants only, who inter-plead against each other. The
hallmark of an interpleader suit is the fact that, in an interpleader suit, the plaintiff is not really
interested in the subject-matter of the suit. The primary and the foremost object of an
interpleader suit are to have the claims of rival defendants adjudicated, for, in an interpleader
suit, there must be some debt, or, some money, or, other property in dispute between the
defendants only. The plaintiff in an interpleader suit must be in a position of impartiality/ non-
arbitrariness.

The Halsbury’s Laws of England: states that, “Where a person is under liability in respect of a
debt or in respect of any money, goods or chattels and he is, or expects to be sued for or in
respect of the debt or money or those goods or chattels, by two or more persons making adverse
claims thereto, he may apply to the court for relief by way of interpleader”.
Section 88 of the Code of Civil Procedure, 1908: Section 88 of the Code of Civil Procedure,
1908, states that, where two or more persons claim adversely to one another some debt, sum of
money or other property (moveable or immoveable) from another person, who in fact does not
claim any interest in that sum of money or property except the cost or charges incurred by him in
instituting an interpleader suit and/or safeguarding the property and is ready and willing to pay or
deliver the sum of money or property to the rightful claimant, then, such another person can file
an interpleader suit. The pre-condition for filing an interpleader suit is that- on the date of
institution of an interpleader suit there must be no suit pending in which the rights of the rival
claimants can be properly decided. In the case of, Asan v. Saroda , it was held that, where
defendants do not claim adversely to each other, nor does the plaintiff admit the title of one of
the defendant or is willing to pay or deliver the property to him, the suit is not interpleader.

Plaint in an Interpleader Suit: Order XXXV, Rule 1 of the Code of Civil Procedure, 1908
require the interpleader to state in his plaint that, the plaintiff claims no interest in the subject
matter of suit and the claims put forth by the defendants severally. The interpleader must also
categorically state that, there is no collusion between the parties to the suit, that is, the plaintiff
and any of the defendants. The interpleader must specify in the plaint, the claims made by the
defendants severally, and should express his willingness to bring the property (if it is moveable)
before the court. The interpleader in the prayer clause of his plaint must pray the Hon’ble Court
to grant him the cost incurred by him in instituting the suit and also, any other charges incurred
by the interpleader in maintaining and/or safeguarding the property in dispute, which the
defendants claim adversely to one another.

Payment of the thing claimed into Court: Order XXXV, Rule 2 of the Code of Civil
Procedure, 1908, provides that where a thing claimed is such that, it is capable of being paid into
the court, then, the plaintiff/interpleader may be required to pay such amount or thing before the
court. Thus, the court has discretion to make such orders as regards the subject matter in dispute
and the party concerned will be bound to obey the order before it can ask for any relief in the
suit. Syed Shamshul Haque v. Sitaram Singh & Ors

Procedure where Defendant is suing the Plaintiff: Order XXXV, Rule 3 of the Code of Civil
Procedure, 1908 states that, where any of the defendants in an interpleader suit is actually suing
the plaintiff in respect of the subject-matter of such suit, the court in which the suit against the
plaintiff is pending, on being informed by the court in which the interpleader suit is pending,
shall stay the proceedings in that suit as against him. In the case of, Satyanarain v. District
Judge, Tonk & Ors , it was held that, it is not as if that once the suit for interpleader is filed, the
other civil suit has to be stayed automatically; in order to invoke the power under Order XXXV,
Rule 3 of the Code of Civil Procedure, 1908, the plaintiff (or interpleader) is duty bound to
establish a prima facie case in his favour.

Procedure at First Hearing: Order XXXV, Rule 4 of the Code of Civil Procedure, 1908
empowers the court to declare at the first hearing itself, that the plaintiff is discharged from all
liabilities and as a necessary corollary the court can award the plaintiff his costs and dismiss him
from the suit. However, if the court is of the opinion that justice, propriety and convenience
requires that all parties to the suit be retained, then, the court shall not discharge the plaintiff till
the final disposal of the suit. If the court finds it necessary, then, it can direct that certain other
issues be framed and tried along with other issues albeit the suit, and that any claimant (that is,
defendant in the interpleader suit) be made a plaintiff in lieu of or in addition to the original
plaintiff.

Who cannot file Interpleader Suit? : Order XXXV, Rule 5 of the Code of Civil Procedure,
1908 states that, an agent cannot sue his principal, and similarly, a tenant cannot sue his landlord
for the purpose of compelling such principals/landlords to interplead with persons other than the
ones claiming through them. Jugal Kishore & Anr v. Bhagwan Das

In the case of, N.M.N. Duraiswami Chettiar v. Dindigul Urban Co-operative Bank Ltd , it
was held that, on a dispute as to the ownership of the deposit arising between the customers and
the third person, an interpleader suit filed by the bank, would not come within the prohibition of
Order XXXV, Rule 5 of the Code of Civil Procedure, 1908.

Charge for Plaintiff’s Costs: Order XXXV, Rule 6 of the Code of Civil Procedure, 1908 states
that, when an interpleader suit is properly instituted, then, the court can provide for the costs to
be given to the original plaintiff either by giving him a charge on the thing claimed by the
defendants/claimants, or, in some other equally efficacious way.

Appeal: An order dismissing an interpleader suit is appealable. An appeal can be preferred under
Order XLIII, Rule 1 of the Code of Civil Procedure, 1908.
Security from the plaintiff

When security for costs may be demanded:

At any stage of a suit, the court may either of its own motion or on the application of any
defendant, order the plaintiff, for reasons to be recorded, to give within the time fixed by it
security for the payment of all costs incurred, and likely to be incurred by any defendant:
provided that such an order shall be made in all cases in which it appears to the court that a sole
plaintiff is, or (when there are more plaintiffs than one) that all the plaintiffs are, residing out of
India and that such plaintiff does not possess or that no one of such plaintiffs possesses any
sufficient immovable property within India other than the property in suit. [Order XXV, Rule
(1)].

Residence out of India:

Whoever leaves India under such circumstances as to afford reasonable probability that he will
not be forthcoming whenever he may be called upon to pay costs shall be deemed to be residing
out of India within the meaning of the proviso to sub-rule (1). [Order XXV, Rule 1 (2)].

Effect of failure to furnish security:

Where the security for the payment of costs, when ordered, is not furnished within the time
fixed, the court shall make an order dismissing the suit unless the plaintiff or plaintiffs are
permitted to withdraw there from.

Where a suit is dismissed for failure to furnish security for costs, the plaintiff may apply for an
order to set the dismissal aside, and, if it is proved to the satisfaction of the court that he was
prevented by any sufficient cause from furnishing the security within the time allowed, the court
shall set aside the dismissal upon such terms as to security, costs or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit. But the dismissal shall not be set aside unless
notice of such application has been served on the defendant. (Order XXV, Rule 2).

3. Write a note on power of the courts to issue commissions explaining the

purpose of such issuance.
Answer
Introduction

Commission is one of the forms of interim orders inter alia, temporary injunctions, security for
costs, payment in courts and interlocutory orders et cetera; issued by the court to assist the
parties vis-a-vis suit in the prosecution and protection of the subject matter of the suit. Black's
Law Dictionary defines interim as temporary and provisional. However, commissions are not
issued to determine the substantive rights and liabilities of the parties concerning the subject
matter of the suit or proceeding, but is an interim order i.e., incidental proceedings to protect the
rights of the parties during the pendency of the suit. Bank of Maharashtra vs. M.V. River
Ogbees. The purpose of issuing commission by the court is to impart complete justice to the
parties to the suit. The power of issuing commission rests totally in the discretion of the judges.
By issuing a commission in a particular case, the Court performs an in - depth investigation
where the Court deems necessary.

The governing provisions vis-a-vis the subject-matter under consideration given under the Code
of Civil Procedure Code, 1908 are as follows:

PROVISIONS DECODED & ANALYSIS WITH CASES

It is pertinent to note that Sections 75-78 deal with the powers of the court to issue commissions.
Further, detailed provisions have been enumerated under Order XXVI of the CPC.

SECTION 75: POWER OF COURT TO ISSUE COMMISSIONS

Section 75 lists the powers of the courts to issue commission as follows

i. To examine any person;

ii. To make local investigation;
iii. To adjust accounts;
iv. To make partition;
v. To hold investigation;
vi. To conduct sale; or
vii. To perform ministerial act.

The powers of the Courts to Issue Commission are analysed in detail as follows seriatim:
1) To Examine Witnesses: Sections 76-78; Order 26 Rules 1-8

The court can issue commission if the person sought to be examined is unable to attend the court
owing to sickness, infirmity or detriment to the public interest as held in RamKrina vs. F.
Hardcastle and Filmistant Pvt. Ltd. vs. Bhagwandas. In such circumstances, the court could
relax the general rule of attendance in court and make a departure from the rule of taking
evidence of a witness in open court if the witness resides beyond the local limits of the
jurisdiction of the said court or any other ground that the court deems fit as laid in Bandhu
Mukti Morcha vs. Union of India .

2) To Make Local Investigation: Order 26 Rules 9 and 10

The court can issue a commission for the purpose of local investigation vis-a-vis elucidation of
the matter in dispute and ascertainment of the market value of the property etc as held in
Debendranath vs. Natha Bhuyian.

3) To Adjust Accounts: Order 26 Rules 11 and 12

The court may issue a commission for the purpose of examination and adjustment of accounts to
a person, if necessary

4) To Make Partition: Order 26 Rules 13 and 14

Commission could be issued in case where preliminary decree of partition of immovable

property is passed and determination of rights for partition is necessitated as held in Tushar
Kanti vs. Savitri Devi.

5) To Hold Investigation: Order 26 Rule 10-A

Commission can be issued to a person for conducting inquiry, if in the opinion of the court there
arises any scientific investigation which cannot be conducted before the court.

6) To Conduct Sale of Property: Order 26 Rule 10-C

The court can issue a commission to a person directing sale of any immovable property in its
custody which cannot be preserved pending the determination of the suit as laid in Paramhnasa
vs. Trimbak.
7) To Perform Ministerial Act: Order 26 Rules 10-B
 Commission can be issued to a person concerning performance of any ministerial act in the
interest of justice, if in the opinion of the court act cannot be conducted before the court
8) Powers of Commissioners: Order 26 Rules 16-18
As per Rule 16 and 17 the commissioner can summon and procure the attendance of witnesses
and parties to a suit for the purpose of examination. Fixing of date of return of a commission by
the court is provided under Rule 18.14
9) Commissions Issued for Foreign Tribunals: Order 26 Rules 19-22
Under Rules 19 to 22, if the High Court is satisfied that evidence of a witness is sought by a
foreign court residing within its appellate jurisdiction in a proceeding of a civil nature, then it
may issue a commission for examination of the said witness.
10) Expenses: Rule 15
As per Rule 15, the Court may order the party seeking the commission to deposit the requisite
expenses in a time bound manner.

4. Write a detailed note on the suits by or against the partnership firm as provided
under CPC.
Answer

Introduction

It is very common to observe issues arise out of civil transactions. Business transactions often
result out of business relationships, these relationships are often established between two entities
owing to a business structure which facilitated such establishment in the first place. As such
situations present themselves in abundance, certain issues arise out such relationships and it
becomes impracticable to litigate against an individual entity. Hence, it is imperative to have a
proper and comprehensive code to govern these litigations which pertain to such transactions.

Business actions are not attributable to a single individual every time, moreover, certain
remedies tend to have a very limited scope if they are exercised against an individual instead of a
corporation or a business partnership. Further in cases where an entire business setup or a
partnership has been affected due to a certain individual’s actions, there should be a proper
channel to follow to enforce the laws in the own name of the business entity or partnership.
Order 30 of the Code of Civil Procedure deals with such transactions which involve suing or
being sued in the name of a firm or an association of people who carry on a business in a name
other than one’s own. The order runs through 10 rules which discuss the various essentials of
such litigations, ranging from service, notice, appearance etc.

Order 30 of Civil Procedure Code, 1908

Fraud, contractual disputes, breach of trust, etc. are some very common which are heard in
partnership businesses. Sometimes with the intent of committing fraud, some firms enter into
partnerships with other firms and try to avoid their liabilities and promises later. Order 30 of
the Civil Procedure Code, 1908, lays down certain procedures for suing a firm and being sued by
a firm and how to conduct these suits.

The Hon’ble Supreme Court of India in Purushottam Umedbhai and Co. v. Manilal and
Sons, stated that the provisions of Order 30 of the Civil Procedure Code are enabling provisions
to allow different firms who are carrying out businesses as partners to sue or to be sued in the
name of the firm and it does not restrict the partners of a firm from suing or being sued in their
names, nor do they restrict the partners, who may be doing business outside India, from suing in
their names individually in India.

Legal Provisions under Order 30 of Civil Procedure Code, 1908

The legal provisions under Order 30 of the Civil Procedure Code, 1908 are as follows;

Suing of partners in name of the firm

Rule 1 provides the basic idea of nature which the provisions of Order 30 seek to establish. It
states that two or more persons who are liable to be partners can sue or can be sued in the name
of the firm in which they were a part when the cause of action occurred. This helps in facilitating
the litigation process where the individuals or the partners can seek relief by making the
litigation entirely about the partnership firm rather than a single individual.

It further provides for the application to the court, if needed, for the list of partners of that firm to
verify the concerned partners during the time when the cause of action arose.

In Shankar Housing Corp. v. Mohan, the Delhi High Court explained that Rule 1 is required to
sue the firm to prevent the difficulty of finding the guilty partner. Instead of suing him/her
separately, the aggrieved party can file a suit against the firm in which the partners can be held
equally and jointly liable.

Disclosure of Partners’ name

Rule 2 of Order 30 provides that, when the partners sue in the name of the firm, the defendant
may in writing demand for the disclosure of the names of the partners of the firm with their
places of residence. The rule states that the suit shall proceed in the name of the firm but the
decree passed by the court shall constitute the names of all the partners. This rule further
provides that if the firm or the partners fails to comply with the demand made by the other party
the proceedings may be stayed by the direction of the court.

In the case of Alwar Iron v. Union of India, it was observed that if a firm files for a suit and
discloses the names of certain persons as partners who are not registered as partners of the firm,
it will be considered fraud to the court and the suit shall be dismissed with no cost to the
plaintiffs.

Service

Rule 3 of the Order deals with the way of service of summons on the partners of the firm, and
provides that the service shall be made either;

upon any one or more of the partners, or

at the principal place where the partnership firm is conducted upon the person who at that time is
in charge of the management of such place as directed by the court irrespective of the fact
whether or not at that time any of the partners are in India.

However, if the Partnership of the firm has been dissolved and the plaintiff was aware of it,
service of summons shall be made on the persons who are available in India at that time and who
are sought to be made liable.

In the case of R.D.Khan v. Bombay Iron Syndicate, the court held that if the summon is served
to the partners or the firm manager and the partners are out of India during the time of receipt, it
is the duty of the third party(who receives the summon) to inform the partners of the firm about
the summon. The receipt of summon by him shall be deemed to be complete service.
Rights of suit on death of partner

Rule 4 provides for the consequences upon the death of a partner. It states that before the
institution of the suit or during the pendency of the suit if the partner dies it shall not be
necessary to include the legal representative in the suit. However, this shall not limit or affect
any rights of the legal representatives of the deceased which may have;

 application to be made a party to the suit,

 enforcement of any claim against the survivor or the survivors.

In the case of Upper India Cable Co. v. Bal Kishan, the question which arose in front of the
Hon’ble Supreme Court was whether an appeal abates in the absence of heirs or legal
representatives of the deceased partners of the firm. The court stated that the death has no impact
on the proceedings and the appeal cannot be abated. Thus, the question of substituting heirs and
legal representatives should not arise.

Notice in what capacity served

Rule 5 of Order 30 puts an obligation on the part of the plaintiff to serve a notice in writing to
the firm at the time of the service of summons. The main objective for serving such notice is to
inform the partners of the firm in what capacity they have been sued.

In the case of Srinath Brothers v. Century Mills, the court observed that if a person is sued in
the capacity of a partner or he is sued in the capacity of a manager, notice under Rule 5 must be
issued in both cases.

Appearance of partners

According to Rule 6 of Order 30 when the partners are sued in the name of the firm, each
partner shall appear in the court in their own name. However, all the subsequent proceedings
shall be continued in the name of the firm.

No appearance except by partners

Rule 7 of the Order states that the persons who are sued in the capacity of a partner need to be
present during the proceedings of the court. This means that if a person is sued in the capacity of
a manager, he doesn’t need to appear before the court, but if he is sued in the capacity of a
partner, he shall appear before the court.

Appearance under protest

Rule 8 of the Order states that the person who has been served with summons as a partner under
Rule 3 may contest before the court by stating that he was not a partner at the material time by
entering an appearance under protest.

The plaintiff or the person entering the appearance may apply to the court to determine whether
or not he was a partner to the firm and shall be liable as such. However, this shall be done at any
time before the date fixed for hearing and final disposal of the suit.

In case the court holds that the person was a partner at the material time, he can file a defense for
denying the liability imposed on the firm in respect of the claim against the defendant. On the
other hand, if the court holds that the person was not a partner at the material time and was not
liable as such, the plaintiff is prevented from alleging the liability of the person as a partner in
the execution of any decree that may be passed against the firm. However, the plaintiff is not
prevented from serving a summon on the firm and proceeding with the suit.

Suits between co-partners

Rule 9 of Order 30 speaks about suits that are instituted between a firm and one or more
partners therein or between firms that have one or more common partners. In such cases, no
execution shall be issued without the leave of the court to safeguard the interest of all the
partners. On an application of leave to issue such execution the court may direct accounts and
inquiries during the time of execution.

Suit against person carrying on business in name other than his own

Rule 10 of Order 30 explains its applicability in cases where a person is carrying on a business
in a name or style other than his own or a Hindu Undivided Family which is carrying out a
business in any name. In such cases, they may be sued in a manner as if it were a firm name and
will be executed according to the provisions under this Order.
The Supreme Court in Ashok Transport Agency v. Awadhesh Kumar said that Rule 10 of Order
30 makes the provisions under this Order applicable to proprietary concerns as well. It enables
the proprietor of the business to be sued in the name of the firm of his proprietary concern.

Conclusion

The essence of Order 30 lays down the various distinctions of a civil suit concerning a firm at a
non-individual level. The Order was instituted as an enabling provision to facilitate the filing of
suits against firms, as the same is obligated to yield a just compensation if someone is
wronged. According to The Indian Partnership Act, registration of a company is important. In
case a company is unregistered, it cannot sue its partners or any individual.

If a partner of the firm is found committing fraud, which may include embezzlement or
transferring of business assets for personal gains, revealing the intellectual property of the firm,
or stops performing his liabilities, legal actions can be taken against them. Suits by or against
firms or persons carrying on business in different names other than their own can be very well
said to be parallel to the Company Law doctrine of distinct legal personality and the concept of
piercing of the corporate veil.

5. Write a short note on the following (Any two):

a) Condonation of Delay
b) Guardian
c) Executor and Administrator under the CPC
d) Execution of Decree
Answer

Condonation of Delay

Meaning:

The Law of Limitation is an adjective law i.e. aggregate of procedure or procedure Law, rule of
the procedure being rule of law does not make it bias means it doesn‟t take the favor of one
party. Condonation of Delay is the defined as the time extended for the prescribed period in a
certain suits by the Courts only when there is the sufficient cause provided by the appellant for
not „referring appeal‟ and „application made‟ within the meaning of the above Section, the
delay will be considered condoned, exception in case of execution applications. Section 5 is
applicable on criminal cases because it is not prohibiting any other Section.

Reason why Condonation of Delay includes only Appeal and Application and not Suit.

However, This Section does not include the “suit”, but includes appeal and application, the major
rationale behind this is that if Section 5 includes “Suit” then Section 3 of the Act gives the
provision for the Bar of Limitation, Thus, if there is any institution of suit, appeal is preferred
and the application is made after the prescribed period the Suit shall be dismissed, but the
limitation act is not a defense so that if there is any extension in the particular suit which is given
by the Sections 4 to 24 which deals with “prescribed period” these Section will be Considered.
The reason behind this is that: For „Suit‟ extension given is of 3 to 12 years and for appeal and
application it if for 6 months, some concession is allowed to the appeal and application .Hence, if
the Suit is included in Section 5 of the Act, then Section 3 of the act will be irrelevant, the
particular Section will be dilute and will have no effect. Hence, Section 5 is an exception to the
rule laid down in Section 3 of the Act. It also does not include execution proceedings.

For taking the benefit of the Section 5 in order to make application the applicant must have
“sufficient cause” for the delay, and it is upon the discretion of the Court in order to grant
application to the applicant, when the Court thinks that applicant has the sufficient cause in order
to not preferring the appeal and application, the court may condone delay.

The Court while dealing with the application may keep two conflicts in mind.

1. The court will decide the cases on merits rather than going on the technical ground of
delay without adjudicating on the issues.
2. The court must also take into the consideration the non-filing of the appeal or
application by the applicant means, the applicant valuable right has been created and
the right shall not be defeated by the Court. Ram Nath Sao Vs. Gobardhan Sao

General principles for the condonation of delay:

I. The party must satisfy the Court, in order to delay for not preferring the appeal or
application within the prescribed time, if the party doesn‟t have the sufficient cause,
 later the period may not be relevant State of Manipur Vs. All Manipur R.P.V.S
Teachers Assen.
II. The entire period between the last date of the limitation to the actual date of the filing
of the application should cover the explanation has to cover the entire period of delay.
The event should occur before the expiration of the limitation period, if it has
occurred after the expiration of period the sufficient cause will not be considered.
Hence, no appeal and application can be preferred in such cases.
III. The proof of the sufficient cause by the applicant does not bound court to preferred
appeal and application; it is the discretion of the Court to prefer the appeal and
application. Manohar Joshi Vs. Nitin Bhanrao Patil
IV. The discretion of the Court must not be mala fide or arbitrary, it is Judicial.

The expression Sufficient Cause:

The above expression has not been defined in the Act, it has a wider meaning, it is very
comprehensive and broad in nature. The cause must be beyond the control of the invoking. In
order to advance the cause of justice it is construed liberally. State of W.P Vs. Howrah
Municipality The two rules were laid down with regards to the expression „sufficient cause‟ by
the Court. Krishna Vs. Chattappan

a) The cause must be beyond the control of the invoking.

b) The parties must not be lacking bona fide, not be shown to be negligent or inactive.

Instances where delay condoned:

i. Applicant suffering from fever.

ii. ii. Applicant suffering from mental shock because of son‟s death and also because of his
wife‟s illness.
iii. iii. Appellants being old people and minor girl unable to understand the procedure of the
Suit.
iv. iv. Illiterate father delay in filing the appeal.

Instances where delay not condoned

i. Delay condoned because of collecting the money from the people involved in the case.
ii. If the appellant had to collect a certified copy for 3 months after it is ready to his
knowledge he had to arrange money to pay the cost of the copy is no ground of
condonation. Gurumukh Singh Vs. State of Punjab A liberal approach to the term
“sufficient cause” was given by the Court. Collector, Land Acquisition, Anantnag Vs.
Musammath Khatiji
a) Court main aim is to provide justice, refusing to condone the delay can result in
meritorious matter.
b) Every day Delay , there is no need to give schedule of each and every minute.
c) Justice or Technicality , it better to provide justice rather than going with
technicality.
d) No presumption from the side of the Court, that the party is voluntarily late

Guardian

Introduction

The object behind having a next friend or guardian ad litem is that a minor is deemed to be
incapable of defending himself and therefore it is imperative that his interests in the suits should
be supervised by an adult person. This person, in case the minor is a plaintiff, is to be called the
next friend and when the minor is a defendant, is called a guardian ad litem or guardian for the
suit. However, neither the next friend nor guardian ad litem is a party to the suit Rup Chand v.
Dasodha. The power of the person so assigned is limited to the proceedings for which he is
recognised by the court RB Mishra v. State

Who can be appointed as Next Friend/Guardian:

Every suit by a minor should be instituted in his name through his guardian or next friend. If the
same is not done, the plaint will be taken off the file. Any person who has attained majority and
is of sound mind, may act as a guardian or next friend, provided his interest is not adverse to that
of minor, who is not the opposite party in the suit and who gives consent in writing to act as a
guardian or next friend. In the absence of a guardian who is fit and willing person to act as a
guardian, the court may appoint any of its officers as guardian in that particular suit.
Provisions to ensure that interests of minors are safeguarded during the suit - Rule 5 of Order
XXXII states that every representation made before the court other than under Rule 10(2) must
be made by his next friend or guardian. Where an order is passed without such representation,
the same may be discharged with. Further, by way of Rules 6 and 7, without the leave of the
court, no guardian or next friend can:

 Receive any amount or movable property on behalf of the minor

 Enter into any agreement on behalf of the minor
 Reach any sort of compromise in the suit on behalf of the minor

The guardian must apply for leave of the court in all of the above cases and the application must
be accompanied with a pleaders certificate and affidavit. Any agreement entered into, without
the leave of the court is voidable at the instance of the minor. Kaushalya Devi v. Baijnath
Sayal Rules 6 and 7 have been designed in order to safeguard the interests of a minor during the
pendency of a suit against hostile, negligent or collusive acts of next friend or guardian. Dokku
Bhusshayya v. Katragada Ramakrishnaya The principle these rules follow is that infant
litigants become wards of court and therefore it becomes the duty of the court to ensure that
guardians act properly and bona fide in the interests of the minor. Rangasayyi v.
Nagarathnamma The protection however, is only during the pendency of the suit.
Duty to Act in Best Interest of Minor:

as already stated in rule 4 any person complying with the qualifications under Rule 4 may
become guardian or next friend. The guardian or next friend however, must ensure that he acts in
best interests of the minor or unsound person. A guardian must ensure that the discretionary
powers exercised by him in his capacity as guardian including the employment/dismissal of legal
counsel etc. must be in the best interests of the minor and not to advance his own cause or
interests. Dharmaji v Gurrav Dharmaji v Gurrav. However, in certain cases it may be allowed
for the guardian and the minor to have common interest in the suit. As in the case
of Ranganathan Chettiar v. Perrkarriappa Chettiar where the mother was allowed to bring a
suit concerning certain properties to be inherited by her and her minor son which had been
wrongfully claimed by the brother of the deceased husband.
Retirement, removal or death of guardian/next friend -
A next friend or guardian who wishes to retire must first procure a fit person to substitute him
and give security for costs already incurred by him.

The court may also remove a particular guardian or next friend if the court is satisfied that either

 His interest is adverse to that of the minor in the concerned case

 He is in such a standing as to be capable of colluding with the opposite party or is closely
connected to the opposite party
 He does not discharge his duty to the satisfaction of the court
 He ceases to stay in India during the pendency of the suit and is therefore unable to look
after the best interests of the minor

Any other sufficiently justifiable cause as the court may decide

In a case where a guardian or next friend retires or is removed or in the case of his death, the suit
remains stayed until another appropriate guardian is duly appointed in that particular case.

When Minor attains majority:

When a minor attains majority, he can choose either to proceed with a particular suit or to
abandon it, if he had moved the court through a next friend/guardian. Therefore:

Where he elects to proceed with the suit - he must apply for an order from the court
discharging the next friend or guardian and for leave to proceed with the suit in his own name.

Where he elects to abandon the suit - he must apply for dismissal of suit on repayment of costs
to defendant or next friend/guardian as the case may be.

Where minor co-plaintiff desires to repudiate suit - he may repudiate the suit and apply to
have his name as co-plaintiff stuck off. The court after examination of the circumstances may
remove his name from the suit on finding that he is not a necessary party or may make him a
defendant instead.

Where minor desires that suit instituted in his name be dismissed on the ground that it was
unreasonable/improper - he may by application move the court for dismissal on such grounds.
It is important to mention that Order XXXII does not expressly provide for provisions when a
defendant would attain majority because a defendant cannot terminate the suit. Ram v. Ganga,

Application of Order XXXII to persons of unsound mind - Rule 15 of the Code states that the
provisions of Order XXXII (Rules 1 to 14) shall squarely apply to persons of unsound mind as
they do to minor with exception of Rule 2A which relates to the furnishing of certain securities
by guardian.
Conclusion:
Order XXXII is another example of exemplary legal framework which is part of a larger code
and process of litigation that has been operating since the inception of the Code in 1908. The
rules under the order have also been amended from time to time to ensure that relevance is
maintained.
Situations such as fraud, collusion and adverse interest have been considered. The judicial
opinion as to negligence of guardian have changed over time Tikaram v. Tarachand and is an
interesting field where there is more scope to expand minors rights. However, Order XXXII is
quite complete in its treatment of the legal problem on how to ensure fair representation of
minors and persons of unsound mind.

Executor and Administrator under the CPC

Representation of beneficiaries in suits concerning property vested in trustees, etc., Joinder of

trustees, executors and administrators and Husband of married executrix not to join are defined
under Rule 1, 2 and 3 of Order XXXI of Code of Civil Procedure 1908. Provisions under these
Rules are:

Rule 1 Order XXXI of Code of Civil Procedure 1908 "Representation of beneficiaries in

suits concerning property vested in trustees, etc."

In all suits concerning property vested in a trustee, executor or administrator, where the
contention is between the persons beneficially interested in such property and a third person, the
trustee, executor or Administrator shall represent the persons so interested, and it shall not
ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order
them or any of them to be made parties.

Rule 2 Order XXXI of Code of Civil Procedure 1908 "Joinder of trustees, executors and
administrators"

Where there are several trustees, executors or administrators, they shall all be made parties to a
suit against one or more of them: Provided that the executors who have not proved their testator's
will, and trustees, executors and administrators outside India, need not be made parties.

Rule 3 Order XXXI of Code of Civil Procedure 1908 "Husband of married executrix not
to join"

Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix
shall not as such be a party to a suit by or against her.

Execution of Decree

Introduction

1] Execution is the last stage of any civil litigation. There are three stages in litigation-

a. Institution of litigation, b. Adjudication of litigation, c. Implementation of litigation.

Implementation of litigation is also known as execution. Decree means operation or
conclusiveness of judgment. A decree will be executed by the court which has passed the
judgment. In exceptional circumstances, the judgment will be implemented by other court which
is having competency in that regard. Execution enables the decree-holder to recover the fruits of
the judgment. EXECUTION- MEANING

The term “execution” has not been defined in the code. The expression “execution” simply
means the process for enforcing or giving effect to the judgment of the court. The principles
governing execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of
the Civil Procedure Code. Hon'ble Apex Court in Ghanshyam Das v. Anant Kumar Sinha
(AIR 1991 SC 2251) dealing with provision of the code relating to execution of decree and
orders, observed in following words - “ so far as the question of executability of a decree is
concerned, the Civil Procedure Code contains elaborate and exhaustive provisions for dealing
with it in all aspects. The numerous rules of Order 21 of the code take care of different situations
providing effective remedies not only to judgment debtors and decree-holders but also to
claimant objectors, as the case may be.” 3] Execution is the enforcement of a decree by a judicial
process which enables the decree-holder to realize the fruits of the decree and judgment passed
by the competent Court in his favour. The execution is complete when the decree-holder gets
money or other thing awarded to him by the judgment, decree or order of the Court. Order XXI
of the CPC is the lengthiest order provides detailed provisions for making an application for
execution and the manner that, how they are to be entertained, dealt with and decided. Execution
is the enforcement of a decree by a judicial process which enables the decreeholder to realize the
fruits of the decree passed by the competent Court in his favour. All proceedings in execution
commence with the filing of an application for execution. Such application should be made to the
Court who passed the decree or where the decree has been transferred to another Court, to that
Court. Once an application for Execution of decree is received by the Court, it will examine
whether the application complies with the requirements of Rules (11 to 14). If they complied
with, the Court must admit and register the application.

Application for Execution of decree

All proceedings in Execution commence with the filing of an application for Execution.
Following persons may file an application for Execution:

1. Decree- holder

2. Legal representative of the decree holder

3. Representative of a person claiming under the decree-holder

4. Transferee of the decree-holder, in some cases.

Court which may execute a decree.

Section 38 of the Code specifies that, a decree may be executed either by the Court who passed it
or by the Court to which it is sent for execution. Section 37 defines the expression ‘Court which
passed a decree’ while sections 39 to 45 provide for the transfer for execution of a decree by the
Court which passed the decree to another Court, lay down conditions for such transfer and also
deal with powers of executing Court.
U/s. 37 the expression Court which passed the decree is explained. Primarily the Court which
passed the decree or order is the executing Court. If order or decree is appealed against and the
appellate Court passes a decree or order, even then the original Court which passed the decree or
order continues to be treated as Court which passed decree. The Court which has passed the
decree or order ceased to exist or ceased to 3 have jurisdiction to execute the decree already
passed, then the Court which will be having a jurisdiction upon that subject matter, when
application of execution is made will be the competent Court to execute the decree.

Merely because the jurisdiction of the Court which has passed the decree is transfer to another
Court due to transfer of territorial area, the jurisdiction to execute the decree passed by such a
Court is not ceased. However, the Court to whom the transfer of territorial area is made, will also
have a jurisdiction to conduct the execution of decree or order. (Sec.37). Sec. 38 contemplates
that a decree may be executed either by the Court which passed it, or by the Court which it is
sent for execution. However the execution on judgment debtor is criteria of executing Court of
territorial jurisdiction.

MODES FOR EXECUTION

Section 51 to 54 describe procedure in execution or mode for execution. Mode of executing

decree under section 51: 10] (a) By delivery of any property specifically decreed. Property may
be movable or immovable (b) By attachment and sale of the property or by sale without
attachment of the property. (c) by arrest and detention. (d) by appointing a receiver. (e) is the
residuary clause and comes into play only when the decree cannot be executed in any of the
modes prescribed under clause (a) to (d).

Execution of Foreign Decrees in India:

A foreign Decree or judgment needs to be conclusive in nature. Section 13 of the CPC lays down
the test for conclusiveness of a foreign judgment or decree, which says that a foreign judgment
would be conclusive in all cases except the following:

 When a court of competent jurisdiction has not pronounced it

 When it has not been pronounced on the merits of the case
 When it has been based on a wrong view of international law or a refusal to recognize the
law of India in cases in which such law is applicable
  When the proceedings carried out while obtaining the judgment are opposed to natural
justice
 When such a judgment has been obtained by fraud
 When it sustains a claim that had been based on a breach of any law in force in India

Thus, a foreign judgment or Decree shall have to pass the seven tests mentioned above.
Otherwise, such foreign judgment or Decree cannot be enforced in India as it will not be
regarded as conclusive if it fails any of these tests.

6. What provisions have been made in The Code of Civil Procedure, 1908 regarding
the withdrawal of suit and compromise outside the courts?
Answer

When a suit is instituted in the court, the Plaintiff (a person who files a case against another
person) has a cause of action mentioned in his plaint describing all the details of his claim in the
prayer section, which he will be entitled to. After hearing of the case, the court will decide and
pronounce a judgement, which might be awarded to the plaintiff or the defendant as per the merit
of the case. Such claim may be awarded to the plaintiff if the case is decided in his favour upon
execution of a decree.

But in certain cases a situation might arise where there is a compromise between the parties after
the institution of case and before the judgement has been passed, in accordance with the above
mentioned provision.

It is purely the discretion of the parties if they actually want to compromise and adjust their
disputes by an agreement or compromise. If the court is satisfied that the parties are willing to
mutually settle up wholly or in part by any lawful agreement in writing and signed by both the
parties or if the defendant satisfies the plaintiff in respect of the subject matter of the suit, the
court shall record such statements, agreements, compromise or satisfaction and pass a
compromise decree accordingly.

Essential clauses in a compromise

There are few conditions which must be satisfied for a valid compromise between the parties.
The parties must enter into an agreement or compromise, which shall be in writing and signed by
the parties and also that agreement must be a lawful one. The same shall be recorded by the court
and also the most important thing, the compromise decree shall be counted as a valid one, only if
the same has been passed by the court.

Jurisdiction: It is to be kept in mind that the compromise must be recorded in the court where it
was pending before the compromise. In case of a suit, it can be recorded in the trial court
whereas in case of an appeal/revision, it can be recorded at appellate court or revisional court
thereof. In the case of execution of the same, it must be recorded by the executing court itself.

In case of a Minor: Another such essential provision regarding the compromise in a suit, in
which a party to the suit is a minor. In such cases, it is provided that no next friend or guardian of
minors shall be allowed to enter into any agreement or compromise without the leave of court
with reference to the suit.

Power of a Pleader: A suit powered by a pleader on behalf of his client, can be counted as the
pleader holds the same position as his client. The pleader has the full authority to enter into a
compromise on behalf of his client. However, the court before granting any leave, should serve
notice to the persons interested.

Applicability: Though the compromise observed by the court is called a decree but it shall have
not the same effect as a decree. Hence the principle of Res-Judicata shall not be applicable
because the acceptance by the court of something to which the parties had agreed upon. It is not
the mere decision of the court.

Execution: As we earlier discussed, the compromise decree is not an actual decree, but the
process of execution of such decree is similar to the execution of actual decree. It is always to be
advised that the compromise which is unlawful or passed by the court having no jurisdiction to
pass the same is always counted as a nullity and its validity can be challenged even in the time of
execution. Again as we know appeal lies only against an actual decree and as we mentioned
earlier that the compromise decree is not an actual decree, so no appeal lies against a
compromise decree.

Rule 3B: No agreement or compromise in a representative suit can be entered into without the
leave of the court. Before granting such leave, the court shall comply a notice to the interested
party.
Bar to Suit- Rule-3A: no suit can be filed to set aside a compromise decree on basis of its
legality and lawfulness.

Steps taken to settle a proceeding

Scope of the settlement:

It usually involves at least a release of claims by one party against another. It is up to them to
decide whether the release is to be unilateral or mutual and how the scope of the release will be
defined. It is also to be taken into consideration that the release extends to the present and future
claims or it affects only the existing claims made in the formal proceeding.

Payment of a settlement:

Generally the intention of the parties’ under the settlement is to substitute the existing rights with
the rights arising under the settlement. The settlement agreement should mention all these things
including the consequences of non-payment.

Conditions to the settlement:

The parties should consider whether there are condition precedent to the settlement, or any
particular terms and conditions coming into effect. The process by which a settlement comes into
effect is the most important thing to be taken care of. Generally the party is not obliged to
dispose of the proceedings until the settlement amount is fully paid.

Disposal of proceedings:

The settlement agreement must be clear about the formal disposal of the proceeding and who
will bear the cost of the attorney/arbitrator and any outstanding dues of the court.

In arbitration proceeding parties shall be settled through arbitration in accordance with the
Arbitration and Conciliation Act, 1996 and the respective pleadings shall be submitted to a
mutually appointed sole Arbitrator.

The Arbitrator shall take a decision with a time bound manner maximum of 6(six) months after
considering only the written arguments. The decision awarded by the Arbitrator shall be bound
on both the Parties. In case one of the Party deliberately tried to delay and/or obstruct the
Arbitration proceeding, the Arbitrator shall pass an ex-parte order, which would be enforceable
on both the Parties.

Confidentiality:

It is important to include an obligation on the parties to agree and undertake to each other that
they shall during and after the Term of this settlement agreement preserve the confidentiality and
not directly or indirectly reveal any part, report, publish, disclose or transfer or use of its own
confidential information except in limited circumstances, such as in compliance with the law or
regulatory body or for any reason to enforce this settlement agreement.

No admission if no final settlement:

The parties must ensure that the provision of the settlement agreement provides that, if no final
settlement is reached, it will not be possible to put the settlement agreement before the court or
arbitral tribunal for admission purpose

Conclusion

As per the above facts and provision under C.P.C, we can say that after the institution of the suit,
parties to the suit are free to settle and adjust their case by an agreement or by the compromise.
Order-23, Rule-3 and 3B say regarding the compromise between the parties and also provide
some conditions for the agreement. Upon fulfilling those conditions, the court may pass a
compromise decree in the same suit.

7. Evaluate the situation stated below giving very briefly issue, decision and
reasoning based on the provisions of CPC:
‘Sachin gave 10000 INR to Sourabh (a public officer) as debt. It was decided that
the said amount will be returned within one-year time. After the lapse of one year
when Sachin approached Sourabh for money, Sourabh refused to pay the debt.
Sachin then approached the court by filing a plaint. Sourabh made an objection
that proper procedure as provided under Sec 79-82 and Order XXVII was not
followed.’
Answer

Facts
Sachin had given 10,000 Rs to Sourabh who is a public officer with the amount to be returned in
a year. When Sachin had approached Sourabh & asked for the money after the end of the tenure,
he refused to pay the amount. Sachin filed a plaint in the court & Sourabh countered this by
making an objection stating that proper procedure hasn’t been followed

Issue

Whether Proper Procedure was followed by Sachin as laid down in Section 79-82 & Order 27 of
the Code of Civil Procedure, 1908

Analysis

Sections 79-82 of the Code of Civil Procedure, 1908, and Order 27 of the Code of Civil
Procedure, 1908, dictate the procedure to be followed when filing a lawsuit against the
government or public officers. Code of civil processes provides just the procedures. The Indian
Constitution of 1950 governs the parties' rights and obligations. The delivery of notice to the
defendant is the first stage in the process of bringing a lawsuit in this matter. A plaint can be
filed in a court of law only when two months have passed from the date of serving of notice
to government authorities, according to Section 80 of the Code of Civil Procedure, 1908.

If the defendant is the Central Government, the notice should be served on the Secretary to the
Government; if the defendant is the Railways, the notice should be served on the General
Manager; if the defendant is a State Government, the notice should be served on the Secretary to
that Government or the Collector of the District; if the defendant is a public officer, the notice
should be served on him; and if the defendant is the State of Jammu and Kashmir, the notice
should be served on the Chief Secretary of the Government or any other officer sanctioned by the
government.

The major goal of the Legislative in including this section and include this process in the filing
of a lawsuit is to ensure that the Government or a Public Officer is aware of the situation. the
Plaintiff's grounds, requests, or concerns for why the lawsuit will be filed Because the Public
Official is aware of the Plaintiff's suffering, he or she can intervene and correct the situation. For
the same reason, a two-month term is also offered.
Government's principal goal is to serve the people and safeguard their rights. They might give
more priority to the matter and settle the conflict without having to go to court if they provide the
notice with enough time. This will save not only the Court's time, but also the government's and
unneeded legal costs.

The Court had also stated same rationale in the case of State of Madras v. C.P. Agency, and the
Supreme Court had backed it up with its own analysis in the case of Bihari Chowdhary v. State
of Bihar. This provision benefits the government, the courts, and the general public, but it can
also be abused, undermining the basic goal of law, which is to provide justice.

If the offended person chooses to bring a lawsuit in a court of law after the two-month period has
passed, he or she must present a written statement describing how the notice was served. The
service of the notice is a stringent procedure that must be followed. It should be done explicitly
rather than implicitly. In the case of State of A.P. v. Gundugola Venkata, the Supreme Court
held as much, and also said that if appropriate service of the notice is not made, the claim would
be dismissed.

This legislation, on the other hand, should be regarded and interpreted in light of its intended
purpose. A simple mistake that has no bearing on the plaint's goal should not result in its
rejection. Dominion of India v. Ghanshyam Dass

According to the legislation, the notification must meet the minimal standards. If the litigation
involves a public official and the relief sought is an act, Proper serving of notice becomes
required, which the officer will have to undertake in the near future. Chitturi Venkata v. State
of Madras The activities that the Public Officer can perform in his official position are included
in the sentence act. Acts performed outside of his or her official role are not included as held in
Chander Kant v. State of Maharashtra

It is a procedural legislation, not a substantive one, that requires notice to be served. The purpose
of serving notice is to ensure that the government is informed of the Plaintiff's difficulties and
the course of action that he plans to take. The government benefits from the service of notice,
and it is incumbent to the government to support it. If the government expressly states that
service is not required, the Court may allow the plaint to proceed without it. However, the facts
and circumstances of the case must be considered. Bombay Municipal Corporation v. Vasant
Ambadas

If the case is urgent, Section 80(2) of the Code of Civil Procedure, 1970 permits private
citizens to launch a lawsuit against the government without serving the notice on the public
servant. Sudhir Kumar Sharma v. State of Kerala. This provision serves as an exemption to
Section 80 of the Act's sub-section 1. The primary goal of introducing this was to ensure that
there is no miscarriage of justice in urgent instances due to delays in the processes. The Court
determines the urgency of the situation based on the facts and circumstances. In determining
whether the case is urgent, the Court should hear both the private individual and the government.

After reviewing a few precedents and laws, it can be demonstrated that proper procedure was not
followed because the facts are silent on the duration and if a notice was served because the
Factual Matrix states that Sachin approached Sourabh for money and when that failed, he went to
court and filed a plaint. A correct judgement might be formed if the facts were more clear on this
point.

It's also unclear if the money was taken as part of his official duties or if it was taken outside of
the scope of his work. Furthermore, if the suit was filed outside of the area of his job, it is legal
and can be pursued, however if it was filed while he was employed, the claim would be
dismissed, as stated in the case of State of A.P. v. Gundugola Venkata.

Conclusion

Suits brought by or against the government or public officials include a lot of procedures, but
they also provide the government with a lot of protection and defences. These safeguards enable
the government to engage in providing private individuals with remedies while saving the Court
time. However, these safeguards constitute a major challenge and stumbling block in the process.
the act of enforcing the law. As a result, in my opinion, rather than making changes to the statute,
such as completely exempting the procedure of serving notice on the government, the Court
should consider the facts and circumstances of the case and determine whether service of notice
is required in the case.
Based on the factual Matrix & Reasonable assumptions drawn, The suit cannot be followed
through with & has to be dismissed. However, if the facts were clearer on the issue, the
reasoning & The decision will change since the facts are silent on multiple key issues.

8. Evaluate the situation stated below giving very briefly issue, decision and
reasoning based on the provisions of CPC:
‘Ragnarok’, a trustee of Asgard (Trust Property), learnt that there is some
encroachment upon Asgard by the neighbor ‘Hella’, thereby the rights of the
Asgardians (beneficiaries) are violated. Suggest the legal course of action by
Ragnarok as per the provisions contained under the CPC.’
Answer

Issue

What are the Rights of Asgardians that have been violated because of the action of Hella

Analysis

In this scenario, the main application of legal provisions is in the area of Easement.

An easement is a right which the owner of a property has to compel the owner of another property
to enable something to be done, or to prevent from doing anything on the survient element for the
advantage of the dominant tenement. Right of path, right to light, right to air, and so forth.

An easementary right is similar to a privilege in that it denies the owner of one tenement the right
to enjoy that tenement in or over the tenement of another person, requiring the latter to suffer or
refrain from doing something on his own tenement for the benefit of the former.

The following are requirements for an easementary right:

• Dominant and opportunistic tenement

• The dominating tenement should be accommodated in the easement.
• Easementary rights are required for the dominating tenement's benefit enjoyment.
• The dominant and survivor owners must be distinct individuals.
 • The dominant owners should have the right to do and continue to do anything, or
to prevent and continue to prevent something from being done, in relation to the
survivor tenement; and
• Something must have a specific or well-defined character and be capable of
serving as the basis for a grant.

Description And Analysis :

Right Of Way

Right of way is divided into two categories.

Public rights of way exist for the benefit of the general public. These are highways that need to
be navigated way. It has its origins in stated or implicit devotion.

By way of -Private rights of way which is vested in particular individuals or to owners of

particular tenements; and its origin is found ingrant or prescription or to certain classes of persons
or certain portions of the public, such as the tenement of a manor, or the inhabitant of the parish
or village.

Express grant or archaic tradition, need or prescription, legislation or private devotion all
contribute to the creation of an easementary right of way. The phrase "universal right of way"
refers to private rights of way that have no restrictions other than those that are required by nature
or the law for all private rights of way. Real-life significance The meaning of the phrase
"universal right of way" comes from its use in contrast to the unique restrictions imposed on users
of specific rights of way over and beyond those imposed by general legislation.

Apart from legislation, the type and breadth of a right of way determine who is allowed to use it.
If the right is formed by grant, the people or classes of persons who are authorised to use it may
be expressly limited by the wording of the instrument, with such grants being read, not rigidly,
but in accordance with the parties' apparent meaning. In general, the people or groups of people
who can utilise the right must be determined by interpreting the instrument in light of the
overall circumstances surrounding the grant exemption. The character of the place over which
the right is given, as well as the nature of the dominating tenement and the purposes for which
that tenement is intended to be utilised, are the most essential of these considerations.

A person who has had the right of way for more than 20 years without being obstructed by the
person whose land he passes through, with the caveat that if such person has alternative route, he
cannot claim easementary right by prescription.

Remedies

It makes no difference whether the path was built by express permission or not by means of
reservation, or is asserted on the prescription theory. The remedy's nature is the same.

Suing for an injunction - to prevent blockage of the right of way or to recover damages - is an
option for someone who claims an easementary right of way. Whether or whether a specific
interruption is considered an unlawful interference relies on the nature of the right of way and the
location, as well as the facts of the case. If he is not harmed as a result of the blockage, only
minimal damages will be given, and an injunction will be denied. A person who, in the name of
exercising a right of way, makes an excessive use of the survivor tenement commits trespass and
may be barred from doing so in the future the request of the succeeding owner The criteria used
to determine whether a person is an excessive user is the extent of the right, as determined by the
accurate construction of an express grant, or the user, as determined by the prescription.

Conclusion

It was established in Copeland v. Greenhalf that an easement is a right that must relate to the
performance of an act on or in relation of some other properties that are not his own. It is self-
evident that the subject-matter of the right must be defined, certain, and specified in order to
constitute an easement. We can see that there has been encroachment by a neighbour by applying
the foregoing requirements and precedents to the current scenario. The first thing we must
comprehend is that there has been encroachment by a neighbor. The first fact we need to
understand is whether there was some property that was commonly connected/intersecting which
can make it encroaching upon. Since the facts are silent on this, we cannot assume either of the
statements. So this is why I have suggested the legal approaches using provisions in the CPC &
The Indian Easement Act.
9. Short note on Bar of Jurisdiction
Answer
Section 9 of the Code confers jurisdiction on Court to try all civil suits unless expressly or
impliedly barred by some provisions of the statute.

In Subhash M Habib v Nemasa A Dharmadas, the Apex Court held that the objection to the
territorial and pecuniary jurisdiction is to be treated on par with section 21 of the Code. It would
be incongruous to hold that section 21A of the Code takes in only objection to the
territorial jurisdiction and not the pecuniary jurisdiction. A decree passed by a Court lacking
territorial or pecuniary jurisdiction does not automatically become void. At the best, it is
voidable, in the sense that it could be challenged in appeal therefrom, provided the conditions of
section 21 of the Code are satisfied.

The correct law as regards the exclusion of jurisdiction of civil court has been laid down by
the Constitution Bench of the Apex Court in Dhulabhai v The State of Madhya Pradesh. The
Court held that:

(i) where the statute gives a finality to the orders of the special tribunals the civil
court’s jurisdiction must be held to be excluded if there is adequate remedy to do what the civil
courts would normally do in a suit. Such provision, however, does not exclude those cases where
the provisions of the particular Act have not been complied with or the statutory tribunal has not
acted in conformity with the fundamental principles of judicial procedure. (ii) Where there is an
express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to
find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive
to sustain the jurisdiction of the civil court. Where there is no express exclusion, the examination
of the remedies and the scheme of the particular Act to find out the intendment becomes
necessary, and the result of the enquiry may be decisive. In the latter case, it is necessary to see if
the statute creates a special right or a liability and provides for the determination of the right or
liability and further lays down that all questions about the said right and liability shall be
determined by the tribunals so constituted, and whether remedies normally associated with
actions in civil courts are prescribed by the said statues or not.
In Dhruv Green Field Ltd v Hukam Singh, the Apex Court has held that bar against
the jurisdiction of the civil court should not be inferred unless an alternative remedy is provided.
Where there is no express bar, but statutory provisions imply the exclusion of jurisdiction,
exclusion still cannot be inferred unless the statute also provides an adequate and efficacious
alternative remedy. Jurisdiction of the civil court would be retained despite express or
implied bar if the order or action complained of is a nullity. The statute which excludes
such jurisdiction should be strictly interpreted.

The normal rule of law is that civil courts have jurisdiction to try all civil suits and the
presumption must be in favour of the existence rather than exclusion. The test to determine
exclusion of jurisdiction of the civil court is (i) to see whether legislative intent to exclude arises
explicitly or by necessary implication; and (ii) Whether the statute provides for adequate
alternative remedy for the aggrieved party. State of Andhra Pradesh v Manjeti Laxmi Kantha
Rao, AIR 2000 SC 2220 : 2000 AIR SCW 2334 : (2000) 2 SCR 937.

It is now well-settled law that jurisdiction must be decided on facts pleaded in the petition, but
facts must form an integral part of cause of the action. Territorial jurisdiction cannot be invoked
in favour of a party who deliberately invokes the jurisdiction of a Court which has
no jurisdiction whatsoever, for ulterior motives. ONGC v Utpal Kumar, 1994 AIR SCW 3287 :
(1994) Supp 1 SCR 252 : (1994) 4 SCC 711.

In Shrimant Chhatrapati Udayanraje Bhosale v Shrimant Chhatrapati Vijaysinhraje

Bhosale, 2015 (5) Mh LJ 350, the high court held that jurisdiction of the civil court is not ousted,
unless entire suit, as brought, is barred. Mere fact that a portion of the claim is excluded from
the jurisdiction of the civil court is not a bar to trial, particularly of the remaining portion of the
same suit which is not excluded. The court further held that provision of law ousting
the jurisdiction of civil courts is required to be strictly construed.

In Ramesh Goyal v Dwinderpal Singh, AIR 2008 (NOC) 889 (Cal) : (2008) 1 CAL LT 429
(HC), it has been held that a subsequent increase in valuation of suit property may take
away jurisdiction of Court.

It cannot be said that the said bar can occur only at the initial stage of entertaining a claim. It can
occur at a subsequent stage either in view of the jurisdiction being taken away or in view of any
other impediment created by the very legislation, rule or scheme that conferred the
initial jurisdiction. Durga Hotel Complex v Reserve Bank of India, AIR 2007 SC 1467 : 2007
AIR SCW 1927 : (2007) 5 SCC 120.

In Shobha J Masram v Ganpat G Thakre, 2015 (3) ABR 169 (Bom), the high court held that
Gram Nyayalaya has jurisdiction to entertain and decide the civil suit pertaining to Specific
performance of agreement to sell. The high court further held that Gram Nyayalaya has
also jurisdiction to entertain and decide counter claim as provisions of O VIII, rule 6A of the
Code are not inconsistent with any provision of Gram Nyayalaya Act (4 of 2009).

In Zuari Cement Ltd v Regional Director, Employees State Insurance Corp, 2016 (1) Mh LJ
617 (SC) : (2015) 7 SCC 690, the Apex Court held that by consent, parties cannot agree to
vest jurisdiction in the Court to try dispute when the Court does not have jurisdiction.

In Shankar A Mali (Dead) by LRs v Ananda M Mali, 2011 (5) Mh LJ 727, the high court held
that bar under section 36A of Bombay Prevention of Fragmentation and Consolidation of
Holding Act (65 of 1947) is only restricted to orders which are passed by the Consolidation
Officers. However, suit for declaration and injunction on the basis of entry by Consolidation
Officers is not barred.

In Sadanand v Reserve Bank of India, 2011 (4) Mh LJ 207, the High Court held that section
36-A of Bombay Prevention of Fragmentation and Consolidation of Holding Act (65 of 1947)
excludes the jurisdiction of civil court only to the extent of decisions taken by the State
Government or Officers under the Act. Therefore, suit for injunction simplicitor is not barred.

Section 9A (CPC) [As inserted by CPC (Maharashtra Amendment) Act, 1977].

In Foreshore Co-op Housing Society Ltd v Praveen D Desai (Dead) through LRs, AIR 2015
SC 2006 : 2015 (3) Mh LJ 315 (SC), the Apex Court held that section 9A of the Code is
mandatory in nature. It is a complete departure from the provision of O XIV, rule 2 of the Code.
Since section 9A mandates to decide the jurisdiction of the Court before proceeding with suit and
granting interim relief by way of injunction, it is necessary to frame the preliminary issue and
decide the same. However, in other cases where the suits are governed by the provisions of O
XIV, rule 2 of the Code, it is the discretion of the Court to decide the issue based on law as a
preliminary issue.
In Kamlakar E Salunkhe v Baburav V Javalkar, 2015 ALL SCR 3334 : 2016 (1) Mh LJ 159
(SC), the Apex Court held that only the issue of jurisdiction can be framed and determined as a
preliminary issue. Section 9A of the Code does not contemplate issue of limitation.

In Walchandnagar Industries Ltd Mumbai v Indraprastha Developers Pune, 2015 (3) Mh

LJ 786, the high court held that power under section 9A of the Code can be invoked while
deciding an application for grant of interim reliefs. Once court proceeds to decide suit on merits
after decision on application for grant of interim reliefs, power under sub-section (1) of section
9A cannot be invoked. However, that does not preclude court from deciding such an issue raised
in written statement by invoking discretionary power under O XIV, rule 2(2) (a) and (b) of the
Code.